Smoot v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia

RICHARD ANTHONY SMOOT
OPINION BY
v. Record No. 2390-00-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 12, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge

Rex L. Edwards, Jr. (Davies, Barrell, Will,
Lewellyn & Edwards, P.C., on brief), for
appellant.

Jennifer R. Franklin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Shelly R. James, Assistant Attorney General,
on brief), for appellee.

Richard Anthony Smoot appeals his conviction for possession

of marijuana while a prisoner, in violation of Code § 53.1-203.

Smoot alleges: (1) the Commonwealth violated the provisions of

the agreed order of discovery and inspection by not timely

disclosing letters written by Smoot; and (2) because of this

untimely disclosure, the trial court erred in overruling Smoot's

motion to dismiss or continue. For the following reasons, we

affirm.

BACKGROUND

Prior to Smoot's trial for possession of marijuana by a

prisoner, the trial court entered an agreed order for discovery
and inspection requiring the Commonwealth to disclose certain

information to the defendant no later than July 14, 2000. The

prosecutor delivered several documents pursuant to the order and

informed Smoot's attorney that his file could be inspected under

his "open file policy."

On September 1, 2000, the Friday before trial, the

prosecutor discovered Sergeant Nelson possessed two inculpatory

letters written by Smoot to fellow inmates. That same day, the

Commonwealth sent defense counsel a supplemental discovery

response with copies of the two letters and another report

attached.

The trial court heard argument on September 5, 2000, the

day before the trial, concerning the "late disclosure" of the

letters. Defense counsel argued the letters were covered by the

discovery order and, as they were not disclosed promptly, the

case should be continued or dismissed. The trial court held

that the letters were not covered by the discovery order and

denied the continuance.

At trial, the Commonwealth attempted to introduce the two

letters during redirect examination of Sergeant Nelson. The

trial court again ruled that disclosure of the letters was not

encompassed by the discovery order, but refused to admit the

letters on the ground that they went beyond the scope of

cross-examination. No further mention of the letters or their

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contents was made. Smoot did not present any evidence in

defense.

The jury found Smoot guilty of possession of marijuana by a

prisoner, in violation of Code § 53.1-203. In accordance with

the jury's verdict, the court sentenced Smoot to serve four

months in jail.

Smoot appeals on the ground that the Commonwealth violated

the discovery order by not timely producing the letters to

defense counsel and that the trial court erred in refusing to

grant the continuance.

ANALYSIS

Rule 3A:11 governing discovery in criminal cases provides

that, upon timely written motion, the accused is entitled to

discover any relevant:

written or recorded statements or
confessions made by the accused, or copies
thereof, or the substance of any oral
statements or confessions made by the
accused to any law enforcement
officer . . . .

(Emphasis added). However, where a discovery order has been

entered in a criminal case, it governs discovery in that case.

Abunaaj v. Commonwealth, 28 Va. App. 47, 53, 502 S.E.2d 135, 138

(1998). The discovery order entered in this case required the

Commonwealth to permit defense counsel to inspect and copy or

photograph any:

written or recorded statement or
confessions, or copies thereof, or the

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 substance of any oral statements or
confessions made by the Defendant to any law
enforcement officer . . . .

In short, the order omitted the language from Rule 3A:11

underscored in the above quotation.

The trial court held that the letter was not within the

discovery order because it was not written "to any law

enforcement officer." Smoot contends that this construction of

the discovery order was error and that the Commonwealth was

required to turn over to defense counsel inculpatory letters

Smoot wrote to a fellow inmate. We agree.

"[W]hen construing a lower court's order, a reviewing court

should give deference to the interpretation adopted by the lower

court." Fredericksburg Construction v. J.W. Wyne Excavating,

260 Va. 137, 144, 530 S.E.2d 148, 152 (2000) (citing Rusty's

Welding Service v. Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255,

260 (1999)). Although trial courts have discretion to interpret

their own orders, that discretion must be exercised reasonably

and not arbitrarily or capriciously. Rusty's Welding Service,

29 Va. App. at 130, 510 S.E. 2d at 261. Furthermore, an order

must be interpreted within its four corners. United States v.

Armour & Co., 402 U.S. 673, 682 (1971).

Applying these principles of law, we find that the trial

court erred in its construction of the discovery order. It is

settled that the language of Rule 3A:11(b)(1)(i) requires the

prosecutor to turn over written and recorded statements by the

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accused whether made to a law enforcement officer or not.

Abunaaj, 28 Va. App. at 52-53 n.1, 502 S.E.2d at 138 n.1; Conway

v. Commonwealth, 12 Va. App. 711, 715, 407 S.E.2d 310, 312

(1991) ("Rule 3A:11 requires the Commonwealth to allow an

accused to inspect and copy or photograph any written or

recorded statements, the existence of which is known to the

attorney for the Commonwealth."); Naulty v. Commonwealth, 2 Va.

App. 523, 528, 346 S.E.2d 540, 543 (1986) (Rule 3A:11 places "no

limitation" on the defendant's right to his own statements).

The discovery order in this case varies from the language of

Rule 3A:11 only in its omission of the limiting phrase "made by

the accused," in the first clause. The trial court infers that

this omission limits the Commonwealth's discovery obligations to

statements made by the defendant to law enforcement officers.

This interpretation necessarily rests on the view that the

defendant purposely deviated from the language of Rule 3A:11 and

deliberately narrowed his rights to discovery when he agreed to

the order. See id. The Commonwealth offered no compelling

reason for the trial court to accept this conclusion. We,

therefore, hold that the trial court abused its discretion in

finding that Smoot intentionally relinquished his entitlement to

discover some of his statements.

In addition, the structure of the challenged sentence in

the order, and the grammatical rules that pertain, do not

support the trial court's interpretation. Generally, phrases

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separated by a comma and the disjunctive "or," are independent.

See, e.g., Ruben v. Secretary of DHHS, 22 Cl. Ct. 264, 266

(1991) (finding that, the word "or" connects two parts of a

sentence, "'but disconnect[s] their meaning'" (quoting G. Curme,

A Grammar of the English Language, Syntax 166 (1986))); Quindlen

v. Prudential Ins. Co., 482 F.2d 876, 878 (5th Cir. 1973)

(noting disjunctive results in alternatives, which must be

treated separately); United States v. Erdos, 474 F.2d 157, 160

(4th Cir. 1973) (finding that limiting phrase in statute is

independent of and does not modify two earlier phrases because

the limiting phrase is separated from the first two by a comma

and the disjunctive "or"); United States v. Riely, 169 F.2d 542,

543 (4th Cir. 1948) (interpreting the use of a comma and the

disjunctive "or" as implying two separate and independent

phrases in a Virginia statute authorizing payment of dividends

by corporation "out of net earnings, or out of its net assets in

excess of its capital"). Accordingly, the phrase, "made by the

Defendant to any law enforcement officer," is independent of and

does not modify the phrase, "[a]ny written or recorded statement

or confessions."

Based on the foregoing, the order required the Commonwealth

to disclose all of the defendant's written and recorded

statements, irrespective of the recipient. Consequently, the

trial court's ruling that Smoot's inculpatory letters written to

his fellow inmates were not encompassed by the order was error.

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 However, to constitute reversible error, the Commonwealth's

late disclosure of inculpatory evidence must prejudice the

defendant's case. See Davis v. Commonwealth, 230 Va. 201, 204,

335 S.E.2d 375, 377-78 (1985); Conway, 12 Va. App. at 716, 407

S.E.2d at 312-13 (citation omitted). To show prejudice, the

defendant must demonstrate how timely disclosure would have

changed his trial strategy or affected the outcome of the trial. 1

See Davis, 230 Va. at 204, 335 S.E.2d at 377 (holding that to

demonstrate prejudice from the nondisclosure of inculpatory

evidence, defense counsel must "suggest to the trial court how

their earlier disclosure would have benefited [defendant's]

defense or altered the course of the trial"); Knight v.

Commonwealth, 18 Va. App. 207, 215, 443 S.E.2d 165, 170 (1994)

1
In contrast, the court's failure to remedy the
Commonwealth's untimely disclosure of exculpatory evidence
constitutes reversible error if the defendant demonstrates that
the evidence is "material either to guilt or to punishment."
Brady v. Maryland, 373 U.S. 83, 87 (1963); see United States v.
Bagley, 473 U.S. 667, 678 (1985). The standard for
demonstrating reversible error differs where the evidence is
exculpatory because a defendant's right to exculpatory evidence
invokes his or her right to due process of law, see Brady, 373
U.S. at 87 ("[S]uppression by the prosecution of evidence
favorable to an accused upon request violates due
process . . . ."); Lomax v. Commonwealth, 228 Va. 168, 173, 319
S.E.2d 763, 766 (1984) ("[T]he Commonwealth has a duty to
disclose [exculpatory evidence] in sufficient time to afford an
accused an opportunity to assess and develop the evidence for
trial."); Gilchrist v. Commonwealth, 227 Va. 540, 547, 317
S.E.2d 784, 788 (1984), while the defendant's access to
inculpatory evidence stems only from the Rules of the Supreme
Court. See Rule 3A:11; Walker v. Commonwealth, 258 Va. 54, 63,
515 S.E.2d 565, 570 (1999) (holding that neither due process nor
Brady requires the Commonwealth to disclose inculpatory
evidence).

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(holding that to demonstrate prejudice from the late disclosure

of inculpatory evidence, defendant must "[offer an explanation]

as to how his trial tactics might have been different if [the

evidence] had been disclosed before trial"); Conway, 12 Va. App.

at 716, 407 S.E.2d at 313 (noting that admission of nondisclosed

evidence is reversible upon a showing that nondisclosure

prejudiced defendant's "case" or "defense").

We note that this case does not involve the admission of

inculpatory evidence that was untimely disclosed. See, e.g.,

Davis, 230 Va. at 204, 335 S.E.2d at 277 (undisclosed autopsy

photographs of victim admitted into evidence); Conway, 12 Va.

App. at 716, 407 S.E.2d at 313 (undisclosed tape recording

admitted into evidence); Naulty, 2 Va. App. at 526, 346 S.E.2d

at 542 (videotape of defendant purchasing chemicals used in the

manufacture of PCP admitted into evidence). In such cases, the

admission of the evidence may affect the determination of guilt

or sentencing and prejudice a defendant who is unprepared for

its impact. See Conway, 12 Va. App. at 716, 407 S.E.2d at 313

(finding prejudice where defendant was impeached by the

admission of an undisclosed tape recording showing his testimony

to be false). But see Davis, 230 Va. at 204, 335 S.E.2d at 277

(finding no prejudice because counsel failed to demonstrate how

earlier disclosure of autopsy photographs that were admitted

into evidence would have benefited defense or altered the course

of trial); Naulty, 2 Va. App. at 528-29, 346 S.E.2d at 543

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(finding no prejudice because defendant did not "allege any

specific prejudice suffered as a result of the tape's admission,

nor is any prejudice apparent from the record").

Here, the evidence in question was not admitted into

evidence, nor referenced at trial. The parties have cited no

Virginia cases addressing the issue of prejudice where

inculpatory evidence was untimely disclosed and not admitted

into evidence. However, we hold that the general principles for

demonstrating prejudice due to untimely disclosure of

inculpatory evidence, set forth above, are relevant and govern

our decision. Specifically, we focus on how, if at all, the

untimely disclosure adversely affected Smoot's trial strategy or

defense.

Although Smoot claims he was prejudiced by the late

disclosure of the letters, a close reading of his claims makes

manifest that they do not rise above an articulation of abstract

principles and speculative conclusions that do not prove how

"earlier disclosure would have benefited [his] defense or

altered the course of the trial." Davis, 230 Va. at 204, 335

S.E.2d at 377. Smoot decided not to testify at trial when he

was untimely provided a copy of the letters that could be used

to impeach him. He alleges that earlier disclosure of the

letters would have helped him ascertain the nature and

authenticity of the letters, determine the circumstances of

their preparation and permitted him to speak to the recipient

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and investigate whether the recipient worked as a law

enforcement informant, all of which inquiries were necessary, he

claims, to "help [him] to decide whether or not to testify."

Smoot's argument misapprehends his burden of proof on this

issue. Notably, he fails to state how earlier, timely

disclosure of the inculpatory evidence would have sustained his

intended trial strategy to present testimony on his behalf, or

otherwise altered his trial tactics. See Davis, 230 Va. at 204,

335 S.E.2d at 377 (holding that defendant must articulate "how

. . . earlier disclosure [of inculpatory evidence] would have

benefited [his] defense or altered the course of the trial" to

demonstrate prejudice from the untimely disclosure of

inculpatory evidence).

In the context of the facts of this case, Smoot's

contention that he needed time to evaluate the authenticity of

the letters and how they were prepared in order to determine the

advisability of testifying in his defense is disingenuous.

First, because Smoot has never contended he did not author the

letters, his claim appears, at best, to be a "red herring."

Even accepting his position, arguendo, verifying their

authenticity and manner of preparation was a simple matter of

consulting briefly with counsel at trial. Smoot not only had

knowledge of the letters' authenticity and preparation at the

time of trial, he was, and remains, the sole witness who could

testify to those facts. He either wrote the letters or he did

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not. Yet, Smoot has not affirmatively challenged the

authenticity of the letters and fails to explain why a

continuance was necessary to address the point.

Similarly, because Smoot had the opportunity to determine

the letters were authentic and has made no claim that he did not

write them, his contention that he needed time to investigate

the recipient's relationship with the police is unpersuasive.

Smoot thus fails to state the relevance of the recipient's

relationship with the police to his trial strategy, and we can

discern none. In short, Smoot fails to articulate how timely

disclosure and additional "investigation" of the letters and

their recipient would have altered his trial tactics, and we

decline to construct a materially altered strategy on his

behalf. Moreover, we note that, while the disclosure of

evidence in this case was untimely, it nonetheless led to a

change in trial strategy which, in effect, shielded Smoot's

credibility from challenge and inured to his benefit. Any claim

of prejudice, therefore, is belied. Cf. Conway, 12 Va. App. at

716, 407 S.E.2d at 313 (finding prejudice where defendant,

unaware of a tape recording that would show his testimony to be

false, chose to testify and was impeached by the recording).

Because Smoot has not carried his burden of demonstrating

prejudice, we affirm his conviction.

Affirmed.

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Benton, J., concurring, in part, and dissenting, in part.

I agree with the majority opinion's holding that the trial

judge erred in ruling that the letters were not encompassed by

the discovery order. I also agree that the prosecutor's

supplemental discovery response was made in good faith. Despite

those good faith efforts, however, the prosecutor's response was

untimely. When late disclosure of discovery prejudices the right

of an accused to have "sufficient time to investigate and

evaluate the evidence in preparation for trial," and the trial

judge denies the accused's motion for a continuance, the accused

is entitled to a new trial. Lomax v. Commonwealth, 228 Va. 168,

173, 319 S.E.2d 763, 763 (1984).

Smoot was charged with possessing marijuana, which was found

inside two pieces of paper on the floor of a basketball court.

The pieces of paper were found approximately twelve inches from

Smoot's feet and the feet of two other men, all of whom were

sitting behind desks by the basketball court. Smoot entered a

plea of not guilty.

Requesting a continuance, Smoot's attorney informed the

judge that Smoot was incarcerated and that he had not been able

to review the letters with Smoot to determine their authenticity,

the circumstances of their preparation, or the means by which

they came into the prosecutor's possession. He also informed the

judge that he had intended for Smoot to "testify and had

anticipated that it would be without any written admissions."

Smoot's attorney said that, because of his uncertainty about the

circumstances surrounding the letters, he had both "evidentiary"

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and "ethical considerations with regard to whether [he was] in a

position to let . . . Smoot testify or not." I believe that

these representations by Smoot's attorney proffered circumstances

which reasonably established prejudice to Smoot's "right to

explore and develop this evidence." Id. at 173, 319 S.E.2d at

766.

As a consequence of not having the opportunity to

investigate the letters and the circumstances surrounding them,

Smoot's attorney represented to the judge that he had to abandon

his trial strategy and "at the twelfth hour completely revamp the

potential defense." Smoot's attorney had no opportunity to

determine whether the letters were instigated by an agent of the

police, how they came into possession of the police, whether they

could be suppressed, or whether he needed to issue process for

other witnesses to testify. The untimely delivery of the undated

letters caused Smoot's attorney to abandon his previously

considered strategy of having Smoot testify.
Instead of presenting Smoot's planned defense, Smoot did not

testify and presented no witnesses. Obviously, if Smoot had

testified, the prosecutor was prepared to examine him regarding

the letters' contents. Smoot's attorney had no opportunity to

assess how to counter that risk and whether to base Smoot's

defense upon the testimony of other witnesses, who were present

at the basketball court where the marijuana was found.

I would hold that the trial judge committed reversible error

by refusing to grant a continuance. The lack of opportunity to

determine whether proof could be mustered to counter the

prosecutor's intended use of the evidence deprived Smoot of "the

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right 'to call for evidence in his favor,' including 'the right

to prepare for trial . . . and to ascertain the truth.'"

Gilchrist v. Commonwealth, 227 Va. 540, 547, 317 S.E.2d 784, 788

(1984). For these reasons, I would reverse the conviction and

remand for a new trial.

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